The U.S. Department of Education plans to explore fairness in school discipline, reopening one of the most contentious education civil rights debates in recent years.
The agency announced Friday it plans to seek public comment on discipline and school climate and “how best to support and build schools’ capacity to promote positive, inclusive, safe, and supportive school climates in a nondiscriminatory manner.”
The review will explore what “policy guidance, technical assistance, or other resources” schools need to ensure equitable treatment, the agency said in an announcement. It is a response to a Jan. 20 executive order, in which President Joe Biden directed federal agencies to examine how their policies address and promote racial equity.
The decision to reopen the debate on school discipline follows dramatic contrasts in how the last two administrations handled the issue. It also comes as the nation continues painful debates about the realities of systemic racism and after state attorneys general urged the Biden administration to revisit the issue.
“All students deserve access to safe, supportive schools and classrooms. Discrimination and use of exclusionary discipline can negatively impact students’ abilities to learn, grow and thrive,” U.S. Secretary of Education Miguel Cardona said in a statement. “We’re seeking information so that the Department can help schools and educators confront disparities and create inclusive school environments that set all students up for success.”
The agency will collect comments for 45 days after the notice is scheduled to be published in the Federal Register June 8. The request for public comment asks for response to questions about a range of issues, including professional development about school discipline, promising school climate practices, and the usefulness of previous federal guidance.
In 2014, the Obama administration issued nonbinding guidance about “disparate impact,” which said that schools may violate civil rights laws if their policies led to higher rates of discipline for students of color than for their white peers, even if those policies were written without deliberate discriminatory intent.
That guidance, and subsequent federal investigations into school districts’ practices, raised concerns about using exclusionary practices, like suspensions and expulsions, as disciplinary consequences. And it encouraged schools to intervene in the “school-to-prison pipeline” by rethinking the role of school police, particularly in routine disciplinary issues.
Civil rights groups praised the actions for addressing longstanding concerns about racial equity. But some conservative critics of the approach said it led schools to adopt ineffective disciplinary alternatives, leading to disruptive classroom environments.
The Trump administration rescinded the discipline guidance in 2018 at the recommendation of a school safety commission formed after a former student shot and killed 17 students and staff members at a Parkland, Fla., high school. That move came after some survivors’ families, and some GOP members of Congress, pointed fingers at an alternative discipline program created by the Broward County district, which includes Parkland, that had been highlighted as a model by Obama administration officials.
Civil rights groups called that justification a distraction from needed debates about school safety, supporting vulnerable students, and supporting students of color. And surveys of school administrators at the time showed many did not attribute changes in their school discipline policies to the Obama directive.
Throughout the debate, federal data showed that students of color and students with disabilities have continued to be disciplined at higher rates than their peers, even as overall rates of suspensions and expulsions declined in many areas.
In the 2017-18 school year, the most recent year for which federal data is available, Black students represented 15 percent of student enrollment but 38 percent of students who received one or more out-of-school suspensions. Students with disabilities represented 13 percent of student enrollment, but 25 percent of students who received one or more out-of-school suspensions.
On May 24, Michigan Attorney General Dana Nessel, a Democrat, led a group of 23 state attorneys general who wrote to Cardona and urged him to “reinstate and expand” the Obama-era discipline guidance.
While the agency’s announcement did not outline plans to reissue 2014 document, there are signs that it may move in that direction.
For example, Biden has nominated Catherine Lhamon to serve as assistant secretary for civil rights at the Education Department. When she previously held that role in the Obama administration, Lhamon championed alternatives to suspensions and directed federal investigators responding to student complaints to examine years of schools’ discipline data in search of broader, systemic concerns. Later, she served as chairperson of the U.S. Commission on Civil Rights when it issued a 2019 report sounding alarms about school discipline practices.
If the Senate confirms Lhamon, she will oversee any review of such policies.
More information about providing public comment on the issue is included in this Federal Register notice.
